MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 11 September 2003
                  DOCKET NUMBER: AR2003085516

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his rank be reinstated to sergeant first class (SFC)/pay grade E-7. He also requests that he be paid all back pay and that the bar to reenlistment be expunged from his records.

APPLICANT STATES: That this "Kangaroo/Double Jeopardy" Board should not have been conducted. He states, in effect, that he was reduced in rank from SFC to staff sergeant due to inefficiency for driving under the influence (DUI). He contends that in no way should this have been inefficiency. He further contends that a general approved the letter of reprimand, the bar to reenlistment and the reduction board and not a commander as stated in the governing regulation. He also argues that there were biased members on the reduction board.

In support of his application, he submits a letter of explanation, dated 8 January 2003; letters, dated 7 October 1999 and 2 September 1999, from the Army Board for Correction of Military Records (ABCMR); an advisory opinion, dated
25 August 1999, from the Army Review Boards Agency Senior Legal Advisor; a letter of explanation, dated 13 May 1998; a memorandum, dated 4 March 1993; a copy of his DA Form 2-1 (Personnel Qualification Record); six character reference letters; DA Form 873 (Certificate of Clearance and/or Security Determination), dated 13 April 1991; DA Form 2166-7-1 (NCO Counseling Checklist/Record); five DA Forms 2166-7 (NCO [Noncommissioned Officer] Evaluation Report); notifications of a hearing before a reduction board; documentation pertaining to a reprimand; orders, dated 13 May 1992; DA Form 4856 (General Counseling Form); a police report, dated 14 August 1992; a police arrest record, dated 8 December 1990; a General Officer Memorandum of Reprimand (GOMOR), dated 4 September 1992; documents relating to a bar to reenlistment; promotion orders, dated 26 January 1989; orders, dated
21 January 1993; and a request for Article 15 Authority, dated 25 August 1992.
EVIDENCE OF RECORD: The applicant's military records show:

After having prior service, the applicant enlisted on 22 November 1972 and remained on active duty through continuous reenlistments. On 1 March 1989, the applicant was promoted to SFC.

On 14 August 1992, the applicant was arrested for DUI by civil authorities.

On 24 August 1992, the applicant's unit commander recommended that a bar to reenlistment be imposed against him for the DUI arrest on 14 August 1992. On that same day, the applicant reviewed and acknowledged that he received a copy of the commander's recommendation and declined to submit a statement in his behalf.

On 25 August 1992, the applicant's regimental commander requested authority to administer nonjudicial punishment against him for his DUI arrest on 14 August 1992. On 3 September 1992, Brigadier General B____ , who was then the Acting Commanding General, approved this request. However, there is no evidence in the available records that nonjudicial punishment was imposed against the applicant.

The bar to reenlistment was approved on 2 September 1992 by Brigadier General B ____.

On 4 September 1992, the applicant was issued a GOMOR for his DUI arrest on 14 August 1992 and for failing to live up to the high standards required of a noncommissioned officer in the United States Army. This GOMOR was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice. The Assistant Commandant (Brigadier General B____ ) directed that this reprimand be filed in the applicant's Official Military Personnel File (OMPF).

On 7 October 1992, the applicant was notified of his pending hearing before a reduction board to determine if he should be reduced for inefficiency. The reasons cited were three alcohol related offenses (arrested for driving while intoxicated on 8 December 1990; arrested for illegal possession of alcohol in vehicle on 17 April 1992; and arrested for driving while intoxicated on 14 August 1992).

On 10 November 1992, the applicant appeared before a reduction board. The reduction board proceedings are not contained in the available records; however, orders show the applicant was reduced from SFC to staff sergeant effective
18 November 1992 under the provisions of Army Regulation 600-8-19, chapter 6 (Reductions in Grade).

On 4 January 1993, the applicant appealed the findings of the reduction board. On 2 February 1993, the Commanding General (Major General M___) denied his request.

On 30 July 1993, the applicant submitted an application for a voluntary retirement date of 1 August 1994.

On 1 August 1994, the applicant retired in the rank of staff sergeant after serving 20 years and 13 days of creditable active service.

There is no evidence in the applicant's service personnel records which shows he was promoted to SFC after his reduction to staff sergeant or prior to his retirement on 31 July 1994.

On 18 May 1998, the applicant submitted an application for correction of military records requesting that his rank be reinstated to SFC. During the processing of his application, an advisory opinion was prepared by the Army Review Boards Agency Senior Legal Advisor on 25 August 1999. The advisory opinion pointed out that Army Regulation 600-8-19 specifically authorizes the use of acts of misconduct to establish a pattern of inefficiency which clearly shows that the soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. The legal advisor opined that the reduction board and commander reasonably concluded the evidence presented showed a pattern of inefficiency.

The advisory opinion stated the Army Regulation 600-8-19 requires that the reduction authority for a SFC be a commander of an organization authorized an 0-6 commander or higher. It does not appear the Assistant Commandant was such a commander. However, the applicant appealed his reduction to the next higher authority, who was such a commander. Therefore, the proper reduction authority ultimately reviewed the reduction and approved it.

The advisory opinion stated that the applicant was denied an opportunity to appeal his reduction to the next higher authority, the first general officer (i.e. a lieutenant general or higher) in the chain of command above the reduction authority. The Army Review Boards Agency Senior Legal Advisor recommended that the ABCMR in its consideration review the reduction under the criteria for appeals contained in Army Regulation 600-8-19, paragraph 6-11, to determine whether the proper appeal authority would have sustained the reduction.

With regard to the applicant's contention of double jeopardy, the advisory opinion pointed out that, as a matter of law, the command's actions constituted neither administrative nor judicial double jeopardy.

The advisory opinion further stated that Army Regulation 600-37 requires only that a general officer senior to the recipient authorize a filing of a reprimand in the OMPF. The Assistant Commandant as a general officer had authority to issue and direct filing of the reprimand in the applicant's OMPF.

The legal advisor pointed out that Army Regulation 601-280 requires that for a soldier of the applicant's years of service, the first general officer in the soldier's normal chain of command or the commander exercising General Court-Martial Convening Authority must approve a bar to reenlistment. It does not appear from the file that the Assistant Commandant was acting in either capacity when he approved the bar.

On 2 September 1999, the advisory opinion was forwarded to the applicant for comment/rebuttal. On 7 October 1999, the applicant withdrew his application for consideration by the ABCMR.

Paragraph 6-2 of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides, in pertinent part, that the reduction authority for SFC, master sergeant, and sergeant major are commanders of organizations authorized a colonel or higher grade commander.

Paragraph 6-5 of Army Regulation 600-8-19 provides that inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and military occupational specialty. Inefficiency may also include any act or conduct that clearly shows that the soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. Commanders may consider misconduct, including conviction by civil court, as bearing on efficiency. Paragraph 6-6 of this regulation states, in pertinent part, that criteria for reduction for inefficiency may include a record of misconduct during the period concerned and adverse correspondence from civil authorities.

Paragraph 6-11 of Army Regulation 600-8-19 provides, in pertinent part, that final action on appeals will be taken by the first general officer in the chain of command above the reduction authority for grades SFC through command sergeant major.

Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. Paragraph 3-4b provides, in pertinent part, that a letter, regardless of the issuing authority, may be filed in the OMPF only upon the order of a general officer senior to the recipient or by direction of an officer having general court-martial jurisdiction over the individual.

Army Regulation 601-280 governed bars to reenlistment at the time in question. Essentially, this regulation provided that a soldier could be barred from reenlisting based on specific incidents of substandard performance and that any commander in the soldier’s chain of command may initiate a bar to reenlistment. Procedurally, the regulation required that a bar to reenlistment certificate be prepared and referred to the soldier so he or she can submit a statement on his or her own behalf. Each member of the chain of command must then endorse the bar to reenlistment to the proper approval authority. Paragraph 6-5d(2) of Army Regulation 601-280 provided that for soldiers with 10 to 18 years of active Federal service at expiration term of service (ETS), those with more than 20 years of active Federal service at ETS, and those where action is taken to extend the soldier to complete 20 years of active Federal service, the approval authority is the first general officer in the soldier's normal chain of command, or the commander exercising General Court-Martial Convening Authority, whichever is in the most direct line to the soldier. The personal signature of the approving or disapproving authority is required. The regulation also provided that the soldier may appeal the bar to reenlistment and that final approval of appeals will be at least one approval level higher than the original bar approval authority.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board considered the applicant's contention that he was reduced in rank from SFC to staff sergeant due to inefficiency for DUI and in no way should this have been inefficiency. However, evidence of record shows the reasons cited at the applicant's reduction board were three alcohol related offenses. Also, the governing regulation specifically authorizes the use of acts of misconduct to establish a pattern of inefficiency which clearly shows that the soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience. Therefore, the Board concludes that the evidence presented at the applicant's reduction board showed a pattern of inefficiency.

3. The Board considered the applicant's contention that a general approved the letter of reprimand and not a commander as stated in the governing regulation. However, the governing regulation states only that a general officer may authorize a GOMOR.

4. The Board considered the applicant's contention that a general approved the bar to reenlistment and not a commander as stated in the governing regulation. The regulation states that the approval authority is the first general officer in the soldier's normal chain of command. Notwithstanding the Army Review Boards Agency Senior Legal Advisor's opinion that it did not appear the Assistant Commandant was acting in the capacity of a commander, it appears to the Board that he was acting as a commander. He approved the bar on 2 September 1992; the Board notes that on 3 September 1992 he approved, as the Acting Commanding General, Article 15 Authority for the regimental commander. In the absence of evidence to the contrary, the Board presumes he was also the Acting Commanding General on 2 September 1992.

5. The Board considered the applicant's contention that a general approved the reduction board and not a commander as stated in the governing regulation. The evidence of record shows that the applicant was denied an opportunity to appeal his reduction to the next higher authority, the first general officer (i.e. a lieutenant general or higher) in the chain of command above the reduction authority. Evidence of record shows an unauthorized general officer approved his reduction board but that an authorized general officer denied the applicant's appeal. However, the Board concludes that since the evidence presented at the applicant's reduction board showed a pattern of inefficiency, it is reasonable to presume that the proper appeal authority (i.e. a lieutenant general or higher) would have sustained the reduction.

6. The Board considered the applicant's contention that there were biased members on the reduction board. However, the applicant has provided no evidence to support this contention.

7. The Board noted the applicant’s request that his rank be reinstated to SFC and that he be paid all back pay. Evidence of record shows the applicant was reduced from SFC to staff sergeant as the result of a reduction board for inefficiency. There is no evidence which shows the applicant was promoted to SFC following his reduction board or prior to his retirement on 1 August 1994. Therefore, there is no basis for granting the applicant's request that his rank be reinstated to SFC with back pay.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

SK_____ CJP____ JTM______ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003085516
SUFFIX
RECON
DATE BOARDED	20030911
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9213
2.	128.0000
3.	126.0400
4.
5.
6.